Comparator Products must be identifiable and similar to come within Comparative Advertising Rules

In this case Aldi claimed Dunnes had engaged in unlawful comparative advertising. Aldi also claimed that in using its trademarks in an unlawful manner, Dunnes had infringed its trademarks.

Decision
The Judge reviewed the CJEU case law on comparative advertising and noted that in a general comparison of products and prices, it is not necessary to expressly and exhaustively list all the products and prices of the competitor products however, they must nevertheless be capable of being specifically identified on the basis of information contained in the advertisement as the prices of goods can only ever be verified if identified. He also held that the burden of proof was on Aldi to establish its case on the balance of probabilities.

The Judge considered the comparability of the products on the basis of:

Comparison of quantity

Comparison of provenance

Comparison of nature

Comparison of substance

Comparison of quality

and found that Dunnes' advertising did not objectively compare one or more material, relevant, verifiable and representative features of those products. He also held that none of the objective differences – which he was of the view were capable of significantly affecting the consumer’s choice of product - were disclosed.

The Judge was of the view that there was a “public interest” in ensuring comparative advertising of the sort described in these proceedings should be prohibited.

Given the Judge's findings that Dunnes' did not comply with the provisions of the Regulations, it followed that they had infringed Aldi's trademarks.

Comment
The decision clearly illustrates that when it comes to comparative advertising:

The comparator products need to be clearly identified or identifiable in the advertisement

The products need to be similar (though not identical), particularly in relation to price, provenance, characterising ingredients and industry logos; and

Comparative advertising must comply with all of the conditions set out in the Regulations to be lawful.